First Natl. Bk. of Moscow, Pa. v. Kendrew

• Decision Date: 04 May 1932
• Docket Number: 30-1932,31-1932
• Parties: First Natl. Bk. of Moscow, Pa. v. Kendrew et al
• Court: Pennsylvania Superior Court

160 A. 227

105 Pa.Super. 142

First Natl. Bk. of Moscow, Pa. v. Kendrew et al

No. 30-1932, 31-1932

Superior Court of Pennsylvania

May 4, 1932

Argued March 8, 1932

Appeals by Homer M. Hartford, Executor of the Estate of F. L Hartford, deceased from orders of C. P., Wayne County, June T., 1928, Nos. 278 and 279, in the case of First National Bank of Moscow, Pa., v. Ellen Kendrew, Arthur Kendrew, W. T Kendrew, F. L. Hartford, Chester A. Brown.

Rules to strike off judgments. Before Searle, P. J.

The facts are stated in the opinion of the Superior Court.

The court dismissed the rules. Homer M. Hartford, Executor of the Estate of F. L. Hartford, deceased, appealed.

Errors assigned, among others, were the orders of the court.

Reversed.

L. D. Savige, for appellant.

M. E. Simons of Simons & Bodie, for appellee.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Gawthrop, J.

Ellen Kendrew and Arthur Kendrew made and delivered to the First National Bank of Moscow, Pa., two joint and several promissory notes, one for $ 1,600 and the other for $ 700, dated respectively April 4, 1927, and April 21, 1927, payable at said bank and each carrying on its face a confession of judgment. On the back of each note was the following endorsement:

"For value received, I, or we, hereby guarantee the payment of the within note at maturity, to the First National Bank of Moscow, Pa., or bearer, and I, or we, hereby confess judgment for the same with the same right to collect from me or us as the holder hereof would have against the maker or makers thereof, waiving the stay, exemption and inquisition laws of Pennsylvania, dated . . . . 19 . . . .

W. T. Kendrew (seal)

F. L. Hartford (seal)

Chester A. Brown. (seal)"

Payment of the notes not being made at maturity plaintiff filed the notes with the prothonotary of the court below on September 26, 1928, with instructions to enter judgment against the makers and the endorsers, and that officer entered a single joint judgment on each note in favor of plaintiff and against both the makers and the endorsers. March 7, 1931, appellant, executor of F. L. Hartford, deceased, who was one of the endorsers, asked to have the judgments as to his decedent stricken off, averring, inter alia, that they were void on their face, because they were entered jointly against both makers and endorsers upon separate confessions of judgment. The court below, however, made orders refusing to strike off the judgments against F. L. Hartford, and these appeals followed. They involve a single question, were argued together and will be disposed of in one opinion.

The orders were erroneous. Each judgment was void on its face as "there was no right to enter a judgment against two individuals upon a separate warrant of attorney executed by each": Romberger v. Romberger, 290 Pa. 454, 139 A. 159. This has been held repeatedly. See Felger v Jersey Cereal Food Co., 292 Pa. 518, 141 A. 475; Union Bank of Nanty-Glo v. Schnabel, 291 Pa. 228, 139 A. 862; Pasco Co. v. Roland, 88 Pa.Super. 245; H. S. Blatt Co. v. McCarthy, 54 Pa.Super. 463, and other cases there cited. As between the makers and the endorsers the liability was several and not joint. A suit could not be maintained jointly against them on the note. This is the test: Fawcett v. Fell, 77...